Archive for category Commentary

Kana’iolowalu is a racial registration process supported by the Hawaii state legislature and using government money. The word as described by its supporters seems benign and friendly: striving together to achieve a goal, like the droplets of water in a stream. But the word has much more violent, warlike undertones. Kamehameha the Great was called “Kana’iaupuni” where that word “na’i” means “conquest” or “conqueror.” “Olowalu” means “to rush or attack in concert” and also “dodging the onslaught of spears.” So “kana’iolowalu” can best be translated as “conquest through swarming” — a method of warfare like the blitzkrieg, whereby attackers surround, rush, and overwhelm an enemy.

The main trouble with Kana’iolowalu is philosophical and moral. The state legislature is creating a list of people who have at least one drop of Hawaiian native blood. Once the list is created, the legislature intends to grant governmental powers to that racial group and then hand over state government money and land to it. Should our government be supporting a process intended to divide the lands and people of Hawaii along racial lines?

There are also many important practical and legal troubles with the actual process currently underway, including the fact that over a hundred thousand names are being dragged onto this racial registry without asking permission. These are the names of individuals previously certified as having Hawaiian native blood by race-based institutions like OHA and Kamehameha Schools, and by the Board of Health which will confirm that they have “Native Hawaiian” on their birth certificates. None of those institutions asked any of these people to affirm support for the political views expressed in the Kana’iolowalu registry. The Kana’iolowalu registry wants to give the impression that it is creating a political entity affirming the “unrelinquished sovereignty of the Native Hawaiian people”; but the overwhelming number of names in the registry will have been dragged there without permission and based solely on racial ancestry.

In 2011 a major book was published by a highly respected historian who analyzed the Hawaiian revolution and annexation.

William M. Morgan Ph.D., PACIFIC GIBRALTAR: U.S. – JAPANESE RIVALRY OVER THE ANNEXATION OF HAWAII, 1885-1898 (Annapolis: Naval Institute Press, 2011). It is available at “Bookends” in Kailua, and amazon.com. Sixteen copies are scattered around various branches of the Hawaii Public Library. A detailed book review, with many lengthy quotes from each chapter, is at http://tinyurl.com/8y2s6o5

Most Hawaii readers will be surprised by details about Grover Cleveland’s attempt to overthrow President Dole and restore the Hawaiian monarchy through a combination of diplomatic and military intimidation in mid to late 1893; and by the fact that Congress considered it perfectly proper to use joint resolution in 1898 as the method of ratifying Hawaii’s five-year-long eager request for annexation.

Perhaps the biggest surprise in the book is the seriousness of Japan’s diplomatic maneuvering — and deployment of multiple warships in Honolulu as a show of force — to block annexation and to demand voting rights for Japanese living in Hawaii. The U.S., Hawaii, and Britain were worried Japan could gain political control of Hawaii through demographic conquest, and/or an imminent Japanese military occupation of Hawaii. The U.S. and Britain counteracted Japan’s multiple warships by their own deployments of warships in Honolulu harbor.

The author, William Michael Morgan (no relation to Senator James T. Morgan of the 1894 Morgan Report), has a Ph.D. in History from Claremont Graduate University. According to information about his book at amazon.com, Dr. Morgan was a Foreign Service officer in the Department of State for more than 30 years, and lived in Japan for 13 years, first as a Marine lieutenant in 1971-72 and then three assignments in the Foreign Service. His State Department domestic jobs included Director of the Japan-Korea desk of the old U.S. Information Agency, Acting Director of the International Visitor Leadership Program, and Director of Analysis for East Asia and the Pacific in the Bureau of Intelligence and Research. During 2007-09, he taught U.S.-Japan relations and National Security and Public Diplomacy at Georgetown’s School of Foreign Service while on “detail” from the State Department.

House Concurrent Resolution 107 (HCR107) in the Hawaii legislature would establish “a joint legislative investigating committee to investigate the status of two executive agreements entered into in 1893 between United States President Grover Cleveland and Queen Liliuokalani of the Hawaiian Kingdom, called the Liliuokalani assignment and the agreement of restoration.”

The investigating committee would be empowered to “Issue subpoenas requiring the attendance and testimony of the witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the joint investigating
committee; … Administer oaths and affirmations to witnesses at hearings of the joint investigating committee; Report or certify instances of contempt as
provided in section 21—14, Hawaii Revised Statutes …”

The purpose of such an investigation is not merely to do academic research on an obscure historical question from 118 years ago. The purposes are to claim that the U.S. had an obligation to restore Liliuokalani to the throne; and to claim that the obligation of the President of the United States continues to this day to restore the Kingdom of Hawaii to its former status as an independent nation.

Three of the many harms that would result by passing HCR107 are briefly identified here and discussed in detail in the testimony.

1. A resolution such as HCR107 brings ridicule and disrespect upon those who support it, and upon the legislature as a whole — as shown by recalling what happened in connection with another Hawaiian sovereignty resolution passed in 2007. Many current members of the legislature, including members of this committee, participated in that debacle. The 2007 resolution established a permanent annual Hawaiian Restoration Day holiday for April 30. Reverend Kaleo Patterson knowingly used a fake Grover Cleveland proclamation from 1894, cited it as fact, and used it as the basis for a media blitz in 2006 in Hawaii and on the mainland calling for a national day of prayer for restoration of Native Hawaiians and repentance for the overthrow of the monarchy. He repeated his local and mainland propaganda campaign in 2007 and pushed a resolution HCR82 through the Hawaii legislature citing the joke proclamation as real and “proclaiming April 30 of every year as Hawaiian Restoration Day.” A 4-page flyer pokes fun at the legislature for passing that ridiculous resolution despite testimony proving the Cleveland proclamation was a joke. http://tinyurl.com/2tj5jl

2. Such a resolution as HCR107 provides a platform whereby certain perpetrators of historical malpractice bring fame and fortune to themselves while spreading false information far and wide, using the legislature as an accomplice. Keanu Sai is the man behind this resolution. He is now revving up his third big scam based on twisted historical allegations which the resolution describes as fact. His convoluted lawsuit against U.S. government officials including President Obama, based on the allegations in HCR107, was dismissed on summary judgment in the U.S. District Court in Washington D.C. by U.S. District Judge Colleen Kollar-Kotelly on March 9.

3. HCR107 contains numerous false or misleading statements, some of which are refuted in my testimony. For example: There was no “executive agreement” between President Grover Cleveland and ex-queen Liliuokalani. One reason is that Liliuokalani was overthrown by the Hawaiian revolution on January 17, 1893 and no longer held executive authority after that, but Grover Cleveland was not installed as President until March. Also, President Cleveland had no power or authority to put Liliuokalani back on the throne, which is what Keanu Sai’s theory says is the core of the “executive agreement.”

The omnibus spending spending bill died last week for lack of support. Senator Inouye had inserted into it a mandate for a study to figure out how to make a federally recognized Indian tribe out of persons who have native Hawaiian blood.

Commenting on that insert, National Review online editorialized: “ That’s a reference to the notorious Akaka Bill, an odious piece of segregationist legislation that would establish a race-based government on the Hawaiian archipelago”. That is a great description. Thank you National Review. It now appears that the proposed Bill is road kill. Now if we could only get some prudent management of the grant activity revealed on this website. That’s the mission, please help.

I don’t know why we should be surprised that Senator Inouye is so accomplished at adding pork to the federal budget. After all, if there’s one thing we love out here, it’s a luau. But even the most liberal spender might blanch at the provision that Inouye just attempted to slip into the notorious Omnibus Spending Bill:

NATIVE HAWAIIAN RECOGNITION STUDY AUTHORIZATION
SEC. 125. The Secretary of the Interior shall, with funds appropriated for fiscal year 2011, and in coordination with the State of Hawaii and those offices designated under the Hawaii State Constitution as representative of the Native Hawaiian community, including the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, and the Attorney General of the United States, examine and make recommendations to Congress no later than September 30, 2011, on developing a mechanism for the reorganization of a Native Hawaiian governing entity and recognition by the United States of the Native Hawaiian governing entity as an Indian tribe within the meaning of Articles I and II of the Constitution.

Allow me to cut through the legislation-ese: This provision grants an unspecified amount of money for a study (made in cooperation with OHA and the Department of Hawaiian Home Lands) on implementing the Akaka Bill constitutionally. If it weren’t for the fact that it’s a blatant pork project, one would be tempted to say something like, “Hey, since you’ve been pushing for this for years, don’t you think it would have been good to address this earlier?” However, given the nature of politics and the truer meaning of this project, perhaps the best response would be, “Hey, you sure have a lot of nerve funneling money to the two biggest supporters of this legislation to produce a ‘study’ that will support it.”

So much of the argument for the Akaka Bill is couched in Civil Rights terms–we are given to understand that to oppose it is to somehow oppose the rights and privileges of Native Hawaiians. In fact, one of the most pernicious historical fallacies surrounding the former Kingdom of Hawaii as it relates to the argument for the Akaka Bill ca be found in the way that Akaka supporters blithely ignore the multi-ethnic make-up of the Hawaiian government at the same time as they push for the wholesale creation of a race-based “reorganization.” In light of this sensitive question, it might be interesting to examine where some of the nation’s experts on matters of civil rights stand on the Bill.

Would you be surprised to hear that they oppose it? It’s true. On Dec. 7, 2010, the United States Commission on Civil Rights delivered a letter to key Congressional leaders reiterating their opposition to the Akaka Bill. If you’re interested, you can read the letter in full here. (And the earlier, more detailed letter it references can be seen here.) Without equivocation, the USCCR expresses its opposition that any attempt made to attach the Native Hawaiian Reorganization Act to a spending bill this session. In addition, the letter states that the changes that have been made or proposed to the Act are insufficient to overcome the constitutional concerns that have been raised, and reiterates the Commission’s opposition to the Bill.

What is the source of the Commission’s opposition? The reasons given should be familiar to most of those who have made a careful study of the legislation and its possible consequences: that Congress lacks that constitutional authority to thus “reorganize” ethnic groups into dependent sovereign nations without a strong history of self governance; that doing so will set a dangerous precedent; that it should not be used as an attempt to shore up race-based benefits threatened by recent court decisions; and that it is contradictory to the history of the Hawaiian government.

Above all, the opinion of the Commission makes it clear that the questions of race that surround the Akaka Bill are far more complex than Akaka’s supporters would like to admit. It’s as though, in their efforts to help one ethnic group, the pro-Akaka lobby has deliberately ignored the fundamental principles of civil rights.

Yesterday there was much talk in Washington, DC that Senator Inouye was planning to attach the Akaka bill (presumably the latest version after major changes) to the Senate Omnibus Spending bill later in December. That would mean that would mean that it would pass without hearings or any other vetting. Indicating that the possibility was real, four seasoned U. S. Senators released statements deploring the idea. See press release here. At about the same time, Hawaii Reporter reported the story and quoted Peter Boylan, Senator Inouye’s spokesman, as saying Inouye was not planning such a move and reaffirming Inouye’s 2009 statement that attachment to an appropriations bill would be “nonsensical”. See text here.

Next was Robert Costa at NRO who reported Senator Inouye told NRO that he would like to bring the bill forward, but “it depends on if we can work out something with amendments”. He then quoted the Senator “We’ve been working on this for over a decade now….. No one can say we’ve been hiding this”. That remark prompted a response from Steven Duffield here.

If you are not confused, you should be. But here is the bottom line: there is no transparency here. GRIH stands for transparency in government. Hawaii’s people do not know anything substantive about this bill and people in government are keeping them in the dark.k

Before statehood in 1959, Hawaii had a Plebiscite. Approval was 94+%. Now a secret “nonsensical” attachment will skirt that? Walk your talk, Senator Inouye.

In an article titled “What are the ‘Ceded Lands’ of Hawaii?” written for Honolulu Civil Beat on 11/08/2010, Professor Van Dyke makes some critical errors in his assessment of both the history and the law. While acknowledging the Supreme Court’s rejection of the “Apology Resolution,” he still relies on it for his “legal” justification. While quoting from the Admissions Act of 1959, he omits a key clause that differentiates between “should” and “can.” But most problematically, Van Dyke intimates that “Native Hawaiians” were somehow legally separate during the Kingdom period in Hawaii, and that the public lands that were returned to the State of Hawaii have some sort of racial lien on them.

The first red flag we should recognize in Van Dyke’s writing is the use of quotes around the term “illegal.” In order for something to be illegal, we must have several things – a concrete body of law which was violated, a judiciary to arbitrate the dispute, and finally, a finding after a trial presenting both sides of the issue. Without these necessary requirements, we are substituting personal opinion for legal fact. Although PL103-150 (aka “The Apology Resolution”) uses the term “illegal” several times in describing the Hawaiian Revolution, it does not identify any specific law which was violated, any judiciary with jurisdiction over the Hawaiian Revolution of 1893, nor any trial which was conducted to determine guilt or innocence.

So can the “Apology Resolution” unilaterally declare the Hawaiian Revolution of 1893 illegal? Absolutely not. Ex post facto laws are explicitly forbidden by the U.S. Constitution – one cannot simply pass a law which declares someone’s prior actions illegal. Neither does the legislature have the authority to declare someone guilty as a matter of legal fact. In recognition of this and the basic principles of statutory construction, the Supreme Court on March 31, 2009 firmly established that the “Apology Resolution” had no legally binding effect, stating that the “‘whereas’ clauses cannot bear the weight that the lower court placed on them.”

The second major mistake Van Dyke makes is a subtle, but important distinction between something that is necessary, and something that is allowable. Van Dyke states that the 1959 Admissions Act demanded that “revenues from these lands should be used” for native Hawaiians. This is a misread of the Admissions Act, which provided limits on what the revenues could be used for, not mandates. The specific text of the Admissions Act reads, “such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes…their use for any other object shall constitute a breach of trust…”

This means that the State of Hawaii could spend every penny on public education, and not a dime on the development of farm and home ownership. Or, it could decide to spend everything on public improvements and provisions for public use of the lands, while not funding anything else. Any combination of “one or more” would be legal according to the Admissions Act. The only two things that would be a breach of trust would be to spend none of the revenue at all, or spend any of the revenue on a non-permissible use, such as supporting private schools, or the development of automobile ownership.

With his words Van Dyke echoes a misinterpretation of the Admissions Act that OHA has been intentionally cultivating for many years, using it to justify a 20% share of revenue from the public lands of the State of Hawaii to native Hawaiians (although OHA specifically ignores the blood quantum definition used in the Admissions Act). By their rationale, exactly 20% should be allocated to farm and home ownership, exactly 20% should be allocated to public schools, exactly 20% should be allocated for public improvements, and the last 20% should be allocated to make public lands available for public use. But the Admissions Act, as plainly read, has no such mandate whatsoever.

The most insidious misrepresentation Van Dyke makes, however, is regarding the citizenry of the Kingdom of Hawaii, and the chain of ownership of the ‘ceded’ lands.

From its inception, the Kingdom of Hawaii was a multi-racial nation. High Chief Olohana, otherwise known as John Young, fought beside Kamehameha the Great to establish the unified Kingdom, and was the grandfather of Queen Emma herself. The first constitution of the Kingdom of Hawaii in 1840 stated boldly that all people were “of one blood,” and established equality between all races over 100 years before the modern civil rights movement in the United States. Characterizing the Crown Lands or Government Lands of the Kingdom of Hawaii as being dedicated to only one race is a desecration of both the spirit and the laws of the Kingdom from which they came.

With his synopsis, Van Dyke perpetuates the fiction that the ‘Ceded Lands’ are still ‘ceded.’ But the truth is, they are now more properly called the ‘Returned Lands.’ The Crown Lands and Government Lands of the Kingdom of Hawaii were consolidated into the Public Lands of the Republic of Hawaii in 1894. These public lands (about 1.8 million acres) became the ‘Ceded Lands’ in 1898, when the Republic ceded them to the United States on the condition that the revenues and proceeds, except for the parts used for the civil, military or naval purposes of the U.S., “shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.” Van Dyke acknowledges that this created a “special trust”, but he carefully omits that the ‘Ceded Lands’ Trust was established for all the inhabitants of the Hawaiian Islands, not just for those of a specific ancestry.

When the Territory of Hawaii was established in 1900 by the Organic Act, it reiterated that the public lands were acquired by the United States in “absolute fee” under the Annexation Act, free from “all claim of any nature whatsoever.” These ‘Ceded Lands’ finally became the ‘Returned Lands’, when the lands were returned to the public of the State of Hawaii as per the Admissions Act of 1959. The circle was finally complete – what had originally been the public lands of all the people of the Kingdom of Hawaii, became the public lands of all the people of the State of Hawaii.

Placing exclusive racial claims upon the ‘Returned Lands’ is an abuse of the trust placed in the State of Hawaii, and a violation of our Constitutional guarantees of equal protection. No matter how many times these false claims are repeated, and no matter how many myths are invented to justify such race-based distinctions, they will never become true, and will never be justified. All of the inhabitants of Hawaii, regardless of ancestry, have a powerful claim to the ‘Returned Lands,’ as clearly demanded by the Organic Act and the legacy of the multi-racial Kingdom of Hawaii.

When Governor Lingle announced, with all due flourishing, her newly acquired support for the Akaka Bill, a big part of her new-found appreciation for divisive race-based legislation was in the compromise over criminal immunity that was theoretically being added to the bill. (I say “theoretically” because–while that language was added to the House version of the Bill–there is no guarantee that it will survive to a final version.) Lingle was understandably concerned that Native Hawaiians under a new tribal government might be immune from prosecution of criminal activity under state law. Before anyone starts planning to discover a Native Hawaiian ancestor and set up a counterfeiting ring, I should point out that tribal governments can still prosecute such crimes (and are generally expected to do so). In short, the question of immunity in a new Native Hawaiian government was a critical one. So at least that has been addressed, right?

Not so fast.

In addition to the fact that there is no guarantee that the criminal immunity provisions survive to a final version of the Akaka Bill, there is also the fact that the problem doesn’t end with criminal immunity. Consider this story:

On November 29, 2005, Robert Gutierrez, an employee of the Pueblo of Santa Clara in New Mexico, was driving a car owned by the Pueblo on Pueblo business. That business took him outside of the tribal boundaries of the Pueblo, into a town in the state of New Mexico. It was while he was off of tribal land (though still in a tribe-owned car on tribe-business) that Gutierrez made an improper turn into oncoming traffic and caused a car accident. Peggy Reed and Timothy Reed, a husband and wife who were injured in the accident, sued Gutierrez and the Pueblo for damages arising from their injuries. The Pueblo and Gutierrez didn’t deny their part in the accident–they merely argued that the doctrine of tribal sovereign immunity protected them from the lawsuit. And sadly for the Reeds, the court agreed, dismissing their lawsuit–a decision that was then upheld by the New Mexico Court of Appeals. And all based on the concept of tribal sovereign immunity.

How does this relate to the Akaka Bill? Well, if the bill is passed and Native Hawaiians are provided with the same tribal immunity, it brings an unfair and divisive element to our islands. If you are crossing the street with your spouse/husband/grandmother, and you’re hit by a Love’s truck doing some deliveries, you can sue Love’s and the driver for your injuries. That’s how you can recoup the cost of your medical bills, lost pay at work, chronic pain, and so on. However, under the post-Akaka immunity scenario, if that truck is owned by the Native Hawaiian government and driven by one of their employees, you’re just out of luck. Tribal sovereign immunity prevents you from being able to sue the Native Hawaiian government for your hospital bills, your Grandmother’s wheelchair, the 3 months of work you missed, or anything else.

These are the kinds of problems we’re speaking of when we warn the people of Hawaii that the Akaka Bill poses a real danger to our state and the spirit of aloha that makes it such a special place to live.

Actually, there are plenty of good reasons for Native Hawaiians to oppose the Akaka Bill, from believing that it’s not good for Hawaii to mistrusting how it handles the creation of the new Hawaiian government. But the reasons don’t have to be specific to the bill itself. There is also a principled approach that questions how it affects the Hawaiian spirit of ohana. Consider this explanation given to Grassroot Institute President Richard Rowland by a Native Hawaiian who is concerned that the Akaka Bill forces Native Hawaiians to turn their backs on spouses, in-laws, and friends:

In addition, they would also be turning their backs on many others with whom they might have long and close ties that bind such as: hanai children or parents, aunties and uncle, classmates, teachers, students, coaches, business partners, co-workers, faithful employees, squadron mates, church parishioners, canoe club members, swim club members, fellow professionals and on and on.

The Akaka bill allows only those with at least one ancestor indigenous to the Hawaiian islands to participate in the process of creating the new government; but it leaves it up to the new Native Hawaiian governing entity to decide the criteria for its own citizenship. Since the Akaka bill is intended to protect the existing race-based entitlements, it is a given that the new government will not have an Equal Protection clause. That means the new government will be free to discriminate on the basis of race, even against some of its own citizens.